The disengagement as a system failure

Bayit Yehudi (Jewish Home) chairman Naftali Bennett’s statement that he would not obey an order to expel Jews from their homes, the criticism it engendered and his subsequent retraction comprised only the latest example of how, seven years later, the disengagement from Gaza continues to cast a shadow over our national life.

That it still haunts us is appropriate considering what it was: the forcible transfer of thousands of people, in which only Jews – by nature of the plan’s goals – were targeted.

Though the Supreme Court did not strike down the plan, it found that it “infringe[d] the human dignity of evacuated Israelis” in a number of ways, violating their property rights and their right to build their lives where they choose, and destroying their communities, businesses and professional livelihoods, in short, their entire way of life.

Putting aside the mortal dangers it posed (all of which and even more have since been realized) the disengagement also sought to answer the most divisive issue our nation faces – setting the final boundaries of the state – a constitutional matter which even the Constituent Assembly, Israel’s first and only constitutional convention, deemed too controversial to decide on.

DESPITE THE enormity of the violations, the controversy surrounding it and the lasting impact it would have, the disengagement was a relatively easy thing for then-prime minister Ariel Sharon to accomplish.

The government presented its plan, the Knesset approved and the judiciary allowed it be executed. And even that outline makes the process seem more rigorous than it was. In the end, it was a simple matter of majority rule.

Technically, the Knesset could have disapproved a prime minister’s initiative, but in a parliamentary system, this is unlikely.

The government represents a majority of parliament and the cabinet is comprised of that coalition’s most powerful members.

Israel’s proportional system makes Knesset opposition further unfeasible: Even if some coalition members disapprove, in the fractured political landscape produced by the electoral system, allies can always be found outside the coalition. And, as the public does not choose members of Knesset, but only a prepared slate of candidates, MKs are first and foremost accountable to party bodies that set the slate, over which the party chairman typically has substantial control.

The court and Israel’s “bill of rights” also proved no bulwark against the will of the cabinet-parliamentary majority. Though the plan violated rights protected by Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation, it was held to meet the laws’ requirement as “a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.”

The disengagement had been approved by the Knesset in law and the court simply deferred to the government/Knesset’s judgment on all the other parts of the equation.

This was a highly deferential ruling. Even a court less willing to interfere in political judgments than Israel’s supreme court could easily have found that no legitimate interpretation of what “befit[s] the values of the State” or was for “a proper purpose,” could allow a mass expulsion, especially when the Basic Laws say that they seek to establish the “values of... a Jewish and democratic state” and cite the “spirit of the principles” in the Declaration of Independence.

That document lauds Jewish settlement of the country, and says the state “will foster the development of the country for the benefit of all its inhabitants,” and “ensure complete equality of social and political rights to all.”

The court could also have held that far more people were uprooted than necessary to achieve the plan’s core goals (violating the “to an extent no greater than is required” clause). It was not necessary, for example, to destroy communities in the Shomron region to reduce friction with Palestinians in Gaza (the inclusion of the Shomron communities was due to a request by the US).

But such a finding was not possible with a court which has become ideologically inbred after decades of being chosen by a committee in which the court itself has a plurality and representatives of the government and the Knesset comprise a minority.

The fact that only one member of the court voted against the plan is evidence of just how lopsided the court has become.

CONTRAST Israel’s governmental structure with the American form of government, where a law must pass through two separate legislative houses, the president, and in which the members of each body are elected by different constituent groups, for different term lengths, and not always at the same time.

Each body has unique powers, making it more powerful in certain spheres, and each has some power over the other. Then there is the Supreme Court, whose members are chosen by the president and the Senate to life terms. As Madison wrote prior to the Constitution’s adoption, it is a system of checks and balances with the goal of making “[a]mbition...counteract ambition.”

The Framers considered the system of government itself to be sufficient protection against governmental-majority tyranny, even without a bill of rights – something only adopted following the ratification of the Constitution.

And it is not only the US. Many other Western countries also employ similar principles to protect individual rights and ensure sound government.

Whether or not the disengagement would necessarily have been defeated in a system with real checks and balances, its passage would have been much more difficult.

The mere existence of such obstacles may have prevented the Plan from gaining momentum or deterred Sharon from raising it at all; or it might have resulted in a much more scaled-back proposal.

For years, members of the Israeli Right has complained about bias in the courts, how “no matter who you vote for you get Shimon Peres,” the open corruption and dishonesty used to garner Knesset majorities for dangerous policies, and how Israeli government seems unresponsive to mass protests and other forms of political action. They point to the disengagement as a prime example of the problem.

Instead of complaining or contemplating the morality of obeying or disobeying orders, those who recognized the disengagement as the act of despotism it was ought to consider how our form of government affects the policies which are adopted and how it should be changed to ensure that a plan that pits soldiers against thousands of their countrymen is never approved again.

The author is a candidate on the Likud-Beytenu list.